Listen to This Article Enhance your reading experience by listening to this article.

Something is missing in the reporting of court cases in Kenya. News outlets’ coverage of cases is, at best, a formulaic exercise in documenting judicial procedures rather than illuminating the human drama and the impact of crime on society. It adds to the general sense that Kenyan media is timid and dull.

Take an ongoing case involving alleged production of counterfeit cement. In a story published by one newspaper, the bare bones were there: a factory owner and 12 others were charged with producing and distributing substandard cement. But the story, needlessly stretched to 600 words, left readers mired in details about court procedures, with little about the substance of the alleged crime.

How was this operation discovered? How widespread is this practice? What are the implications for Kenya’s construction industry and public safety?

Instead of answers, readers got a tedious accounting of bail proceedings and a roster of the legal personalities involved, with the story (typical of such reports) dutifully naming the magistrate, prosecutors and defense lawyers.

While lack of enterprise and creative adventure is clearly a significant factor here, the greater culprit behind reporters’ overcautious approach is our interpretation of the outdated sub judice rules, a legal principle dating back to 1742 England. (Sub judice is Latin for “under a judge”.)

While originally intended to prevent the prejudicing of active court cases through misrepresentation of facts in publication, its application in Kenya has created an atmosphere of excessive caution among journalists. Reporters, fearing contempt charges, take the safer route of reporting just the procedural aspects of cases.

Sub judice rules came to us via the Judicature Act of 1967. While the original English principle allowed room for fair commentary and reasonable interpretation, Kenyan journalists have interpreted these restrictions so strictly that they’ve effectively muzzled themselves.

This approach to court reporting not only bores readers but also fails to fulfil journalism’s basic role of informing and protecting the public. What’s missing from court stories is the social context of criminal behaviour, patterns of illegal conduct and the impact on victims.

Can a balance be struck between respecting legal proceedings and serving the public’s right to know? We need to find a way of telling the human story behind the court proceedings while staying within legal bounds.

This might mean developing more sources beyond the courtroom, providing greater context about similar cases or trends or following up on cases to understand their wider implications.

There’s another option: if reporters have little information beyond what’s stated on the charge sheet (which is often the case), readers can be given what’s called colour – description of the characters involved, the atmosphere in court and the emotions. If readers can’t have the specific information they’re looking for about a case, at least they can be entertained.

As for sub judice rules, it should be noted that in England, they’re no longer relevant to journalists, with the guiding law now the 1981 Contempt of Court Act. Section two of the Act states that a media report creates a “substantial risk of serious prejudice” when court proceedings are “active” (meaning from the point a warrant of arrest is issued or a person is arrested or is charged with a criminal offence).

In the United States, by comparison, journalists are guided by the First Amendment of that country’s constitution. That section protects freedom of speech and of the press, and this freedom was enshrined in the constitution as a founding principle of the nation-state.

In Kenya, journalists need to free themselves from 18th century rules borrowed from England. Their work should be guided by articles 33 and 34 of the Constitution, which concern freedom of expression and of the media. They need to push the envelope on what they are allowed to write about court cases. Their job is not to please judges but to try to satisfy their readers’ curiosity.

— The writer is a Sub-Editor with People Daily